Electronic Communications and Public Records
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By Nathan Dickerson | Tuesday, February 7, 2012 at 9:29 am
The growth of electronic communications in the form of email, text messages, instant messages and social media has created an evolving landscape of open records policies. The courts, attorneys general opinions and administrative agencies have taken the lead in delineating existing state laws in this new media world. Most states define open records based on the content of the record and/or whether the technology used for the communication is privately or publicly owned. Laws focusing on content are more easily transferable to social media, which often reside on a private company's server.
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State leaders face a rapidly evolving electronic communications landscape. The once new frontier of email is being quickly supplemented by text messaging, instant messaging and social media in state government. A new smart phone may include several different applications for communication.
Many of these technologies are likely to fall under existing public records laws, even though the technologies aren’t often named. In 2010, for example, a North Carolina Highway Patrol officer’s text messages were released by the state in an investigation about the officer’s relationship with a subordinate after an open records request by the media.1
Some of the more frequently used communications channels include:
- Email—Electronic mail is often housed on state-owned servers, which makes preservation of records convenient. State officials, however, may conduct state business on browser-based private email programs such as Gmail, Yahoo!, Hotmail and others.
- Text/Instant Messages—Most cell phones include the ability to send text messages, and some phones, such as Blackberries, have the ability to instant message between devices using a PIN number. The latter format makes preserving and accessing electronic communications especially difficult.
- Social Media—Facebook, Twitter, LinkedIn and other social networks on which state officials or agencies may have a presence have all data contained on a private company’s server, but they often provide forums for both official and public comment.
The Policy Landscape
Every state has some form of open records law, but the rapid evolution of technology has required further interpretation with regard to how these laws are applied in the technology arena. The state policy landscape regarding open records law is complex and can be vague, and The Reporters Committee on Freedom of the Press has provided a sophisticated analysis of each state’s policies in the organization’s recently updated “Open Government Guide”. The guide serves as an excellent frame for understanding the key facets of open records law.2
State leaders should look to the following areas for clarification:
- Case law—The courts offer authoritative interpretations of open records law, but judicial decisions are not typically proactive in addressing ambiguities left in statutes due to unforeseen technological innovation. In other words, a court will only issue a ruling when a controversy comes before it. State leaders should be mindful of the guiding principles behind their state’s public records law so that they deploy emerging communications technology in a manner that ensures they are in accordance with likely judicial interpretations.
- Attorneys’ general opinions—Frequently, attorneys general will draft opinions on the proper use of electronic communications to provide clarity. In Maryland, for example, Attorney General J. Joseph Curran noted that public business conducted on private email accounts would be considered part of the public record.3
- Administrative policies—State agencies are sometimes tasked with management of public records. In Oklahoma, state agencies have discretion when determining what records are preserved and how long they are retained.4 A more pronounced example of a departmental public records policy occurs with North Carolina Gov. Bev Perdue’s Executive Order 18, which states that executive branch employees shall “have no expectation of privacy in their electronic correspondence, and all employees shall assume that information on the State’s email system is subject to public review and to review by state officials.”5
Criteria for Open Records
Most states’ open records laws typically focus on two aspects of a potential record to determine whether it is subject to an open records request. These criteria are:
- Content—Some laws, such as those in New Hampshire, focus purely on the content of electronic records.6 If a communication deals with the public business, it is subject to an open records request. It does not matter if the communication occurs on a private email account or a government one. Some states defer to public disclosure, while others more aggressively safeguard communications that may be qualified as private.
- Government ownership—States also may choose to define a public record by government ownership of the technology. Kansas exempts from its public records law emails between state officials that are conducted on private email accounts.7
These two dimensions lead to four combinations of scenarios. A state official could discuss:
- A public issue using government-owned technology,
- A private issue using government-owned technology,
- A public issue using privately owned technology, and
- A private issue using privately owned technology.
These aspects of email use are explored in-depth in the “Open Government Guide”. Generally, though, most states consider public issues on government-owned technology public record, and a state official’s private emails on his or her private account beyond the scope of public records. States are establishing protocols for the scenarios in which private and public communication realms intersect, as demonstrated in the attached chart. For an even more nuanced explanation of each state’s policies, please review the “Open Government Guide”, on which the chart is based.8
Implications for text messages and social media
Most states are still navigating how text/instant messages and social media fit into their open records policies. States that use content as a guiding principle to categorize public records, however, are likely to also consider these channels as fair game for an open records request. The manner in which email is treated is a likely indicator of how text/instant messages and social media are treated. State officials who routinely use these new communications technologies to discuss public business should do so with the understanding that these communications could be considered part of the public record.
References:
1 ABC News. “Text Messages Released in Trooper Resignation.” June 30, 2010.
2 Reporters Committee on Freedom of the Press. “Open Government Guide.” 2011.
3 Office of the Attorney General, Maryland. “Open Meetings Act: Public Information Act – Status of Electronic Mail.” 81 Op. Att’y Gen. 140. 1996.
4 Office of the Attorney General, Oklahoma. 2001 OK AG 4.
5 North Carolina Governor Bev Perdue. “Email Retention and Archiving Policy, Executive Order No. 18.” July 7, 2009.
6 New Hampshire Revised Statutes. “Chapter 91-A: Access to Public Records and Meetings.”
7 Stovall, Carla J. Attorney General of Kansas. “Attorney General Opinion No. 2002-1.” January 3, 2002.
8 Reporters Committee on Freedom of the Press. “Open Government Guide.” 2011.
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